Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except on such grounds and in accordance with the procedure as are established by the law.

These words, from Article 9 of the International Covenant on Civil and Political Rights, enshrine a well-recognised human right to liberty. Despite this, there is an alarming silence within the human rights discourse as to how state-run institutions like prisons, mental institutions and immigration detention centres can ensure that the rights of those whose liberty they confine are respected.

Seeking to address this very issue, on Monday 20 February 2012 Associate Professor Brownyn Naylor and Dr Julie Debeljak welcomed a diverse collection of international and national experts, practitioners, academics and students to the two-day Implementing Human Rights in Closed Environments Conference. Held at the Monash University Law Chambers in Melbourne, this conference provided an invaluable forum where individuals from government agencies, intergovernmental agencies, monitoring bodies and universities gathered to discuss the ongoing challenges facing those who seek to protect the human rights of individuals contained within closed institutions.

After informing attendees that tickets had sold out two weeks before the conference was to be held, Debeljak explained that this unique (and popular) conference emerged from work that is currently being undertaken as part of a three-year collaborative research project funded by an Australian Research Council Grant. Entitled Applying Human Rights Legislation in Closed Environments: A Strategic Framework for Managing Compliance, this project examines the environments of prisons, police cells, closed psychiatric and disability settings and immigration detention, and aims:

to identify the impact in practice of human rights legislation on the functioning of these closed facilities; to understand and influence the work of the monitoring bodies whose role it is to scrutinise the treatment of people held in closed environments; and to propose strategic frameworks for implementing human rights in practice.

The first plenary session, chaired by Dr Julie Debeljak, saw fascinating addresses from Claudio Grossman, Ellen Hansen and Oliver Lewis. Speaking from distinctly international perspectives, these three speakers grounded the conference by discussing how human rights in closed environments are recognised across the realms of international treaty based law, immigration detention and within disability institutions.

Shifting the focus to local issues, Ellen Hansen discussed human rights within the context of Australia’s immigration security detention centres. As the Senior Protection Officer for UNHCR Regional Representation in Canberra – which covers Australia, New Zealand, Papua New Guinea and the Pacific – she spoke with authority about Australia’s alarmingly inhumane treatment of asylum seekers and stateless persons in immigration detention.

… she stressed the detrimental impact that inhumane detention can have on an asylum seeker’s ability to eventually gain refugee status …

After describing the litany of human right breaches that Australian detention centres inflict upon asylum seekers, Hansen spoke of the flow-on effects that result from these breaches. In particular, she stressed the detrimental impact that inhumane detention can have on an asylum seeker’s ability to eventually gain refugee status – by affecting an individual’s psychiatric health; eroding their trust in institutions; and denying them the early access to legal representation that is so crucial to a successful visa application.

Oliver Lewis then spoke about human rights within disability institutions. He is the Executive Director of the Budapest based Mental Disability Advocacy Centre. Lewis’ address brought attention to a conundrum that often faces those working to regulate closed environments – who do not endorse the existence of these institutions; yet still seek to ensure that those which do exist are run in the most humane and respectful way possible. After signaling the important role that civil society has to play as a secondary “watchdog”, he highlighted the need for non-traditional forms of detention like group homes and “de-facto detention” settings to be scrutinised just as thoroughly as prisons and psychiatric institutions.

The second session saw addresses by speakers from the UK, Canada and New Zealand. Dame Anne Owers – Chief Inspector of Prisons for England, Wales from 2001 to 2010 – discussed her experience in the United Kingdom, highlighting that inspection of closed environments should not just “chronicle” abuses; it should also prevent them.

Ivan Zinger – the Executive Director and General Council at the Federal Prison Ombudsman in Canada – gave a thorough account of the Canadian approach to implementing human rights in closed environments. He proposed that those who are assessing the quality of treatment within prisons should “look at the profile of the offender population to assess the success of the policy”. Following from this, Natalie Pierce concluded the morning by discussing the situation in New Zealand. As Legal Advisor to the Chair of the Independent Police Conduct Authority, Pierce gave an account of how the Optional Protocol to the Convention against Torture has been implemented in New Zealand, following its ratification in 2007.

… when every aspect of life is controlled and confined, even the smallest details and simplest changes in procedures can have the greatest impact upon those who are incarcerated.

Through these discussions of their particular experiences, these three speakers highlighted a universal need to focus on the everyday, and seemingly mundane, needs of individuals when implementing human rights in closed environments. For, when every aspect of life is controlled and confined, even the smallest details and simplest changes in procedures can have the greatest impact upon those who are incarcerated.

The opening morning of this conference succeeded in setting the scene for a productive two days of dialogue between representatives from different jurisdictions. It revealed that in closed environments – where issues of human dignity often emerge in a starkly obvious way – it is crucial that practitioners find tangible, productive ways to ensure that the precarious balancing act between respecting human rights and maintaining security, safety and confinement, is acknowledged and strengthened.

Parallel session three: exploration of the international and comparative perspectives – psychiatric settings

Sam Ryan

Detainees, whether deprived of their liberty for justified or less justified reasons, belong to the most vulnerable and forgotten sectors of our societies.

In this parallel session on psychiatric settings, the panel discussed Australian forensic mental health facilities and their international comparison. It was suggested that those in psychiatric facilities are absent from the public mind more so than any other detained group. The issues that affect them are not well understood by the majority of the population and, after all, they have committed a criminal offence.

… to apply community standards in this environment is inappropriate, even discriminatory …

Forensicare is a Victorian statutory authority that provides secure forensic mental health services – including the 116-bed Thomas Embling Hospital – for people in the criminal justice system. Forensicare provides treatment for people who have been found either not guilty by provision of mental impairment or to be unfit to stand trial.

The high rates of mental illness in the criminal justice system are both alarming and somewhat unsurprising. For many forensic mental health patients, the first contact with mental health services occurs via the police. Therefore, according to Dalton, to apply community standards in this environment is inappropriate, even discriminatory, and greater attention and resources are required at the state and federal levels.

In Victoria, positive developments such as the introduction of a Charter of Human Rights and Responsibilities in 2006 have brought a greater level of recognition and care to offenders with mental impairment. However, Dalton believes that, for the Charter to make a real difference to those served by Forensicare, lawyers need to embrace a more aggressive style of advocacy, similar to international cases in which human rights principles have been used through litigation or advocacy to improve the standard of care.

… the ability to provide a suitable environment for detention and care is critical to the mental wellbeing of patients.

Nationally, the system is fractured due to an absence of national policy statements or principles on forensic mental health; and insufficient attention being paid to the complex needs of mental health patients within criminal justice system in national health plans. The lack of national cohesion also means that forensic patients who have been found not guilty by reason of mental of impairment are often unable to be transferred interstate, which can produce bad outcomes if they are alienated from family and carers.

While improvements to the policy and legal framework are important to the rights of patients, the ability to provide a suitable environment for detention and care is critical to the mental wellbeing of patients. The issue of greatest concern to Dalton is resources. “We can have all the legal frameworks in the world but as administrators we need to be able to administer resources in a way that furthers patients’ human rights and ability to recover,” he commented.

Dalton does believe, however, that significant improvements have been made, particularly in the reduction of seclusion within facilities over the past 10 years. New facilities in South Australia, New South Wales and Victoria also offer a better environment for patients, though in New South Wales many forensic patients remain in prison and no charter of human rights currently exists.

Forensic mental health facilities often house people who are detained far longer than in any other psychiatric setting.

Dalton firmly believes that modern facilities, which are well-equipped to deal with visitors – including people from the legal profession, the judiciary and monitoring bodies – and encourage openness, are vital to both how administrators enact human rights and the quality of daily life patients are availed.

Forensic mental health facilities often house people who are detained far longer than in any other psychiatric setting. The average stay at Thomas Embling is eight years, though there are a significant number who have been there more than fifteen years and some who have been in the system more than thirty years.

In Dalton’s view, the area that best defines the atmosphere of forensic health facilities is the dining room. Are there tables and chairs? Is furniture is bolted to the floor? Are staff separated in a kind of “fish bowl” space watching patients? He believes it is critical to consider what kind of atmosphere is created and how human rights feed into design and architecture. Government recognition of these needs is also crucial. Dalton notes that:

only when forensic services have been successful in convincing government that our funding needs are different will we be able to say we’re in a position to protect the human rights of our consumers so that they can safely move on the journey of recovery to be integrated back into the community to lead meaningful lives.

With the appropriate resources, service providers like Forensicare can focus on patient recovery and providing patients with the opportunities necessary to live a valuable life, hopefully not in a secure setting but within the community, in a safe way. Despite, or because of, their involvement in the criminal justice system, the recovery and care of forensic mental health patients must be a priority for all governments in Australia.

Plenary session four: ARC research outcomes to date

Felicity James

The first day of the conference finished with a plenary session on “ARC research outcomes to date”. Associate Professor Bronwyn Naylor explained that the research project is currently a “work in progress” and provided an overview of the project aims.

The key question for the ARC’s research is how human rights can be made part of day-to-day practice for people living in closed environments, Bronwyn said.

The project will survey a variety of partners and interest groups with a focus on prisons; police cells; forensic psychiatric institutions; closed mental health and disability settings and immigration detention. Juvenile justice and aged care facilities will not be examined in this project due to funding constraints, Bronwyn explained.

Bronwyn said the research team will use the following themes to inform their approach: a focus on dignity and respect; human rights instruments; litigation and the development of jurisprudence; monitoring as a pro-active regulatory approach; and cultural change in closed environments to ensure staff are compassionate and respectful.

Dr Patsie Frawley spoke about what is meant by a “closed environment” in the context of disability facilities. With extensive experience in disability policy and practice, Patsie’s research will focus on making human rights part of day-to-day practice in disability facilities.

Patsie’s research will examine facilities that may not traditionally be regarded as “closed environments”. For instance, residential institutions, which are viewed as the “best possible choice of service”, may become a closed environment if they have restrictive institutional policies or rules, she said.

“We need to remember as a cornerstone that people shouldn’t be detained solely on the grounds of depriving their liberty.”

Dr Inez Dussuyer spoke about her role in the project, which is focused on monitoring and the role of oversight agencies. The research will look at the role of formal monitoring bodies and volunteer and community advocacy groups. Inez presented some preliminary findings from oversight agencies in Australia and New Zealand in 2010. For instance, 50 per cent of staff have been accompanied by staff during their monitoring visits, and speaking with detainees and obtaining access to documents were common obstacles.

Audience questions provoked some interesting discussion, including a concluding comment from Emeritus Professor Ron McCallum that “we need to remember as a cornerstone that people shouldn’t be detained solely on the grounds of depriving their liberty” – that there may be other reasons such as self-harm, but detention should never be solely on this basis, he said.